The National Advertising Division has referred advertising claims made by BA Sports Nutrition, maker of BodyArmor sports drinks, to the Federal Trade Commission (FTC) following a review of the advertiser’s compliance with an earlier NAD decision.

NAD is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus.

In that underlying decision, NAD reviewed advertising claims that were featured in two comparative columns. The first column was headlined “Ditch Artificial Sports Drinks” followed by “artificial flavors, artificial sweeteners, artificial colors.” The second column called consumers to “Switch to BodyArmor Sports Drink” and was followed by “natural flavors, natural sweeteners, no colors from artificial sources.” The ad showed two bottles—one clearly identified as BodyArmor SuperDrink and the other, only partially visible, similar to a Gatorade bottle including Gatorade’s distinctive orange cap.

NAD noted in its decision that some Gatorade products, including some of Gatorade’s G2 products, contain artificial colors, sweeteners and flavors. However, NAD noted, Gatorade’s leading product, Thirst Quencher, is not artificially sweetened and at least one variety (lemon lime) is not artificially flavored. However, NAD determined that a reasonable consumer could take away the unsupported message that Thirst Quencher is formulated with artificial flavors, sweeteners or colors. As a result, NAD recommended the advertiser discontinue its claims, “Ditch artificial Sports Drinks: artificial flavors, artificial sweeteners, artificial colors.”

The company took issue with certain of NAD’s findings, but agreed in its advertiser’s statement, to comply with NAD’s recommendations.

In a compliance matter, NAD must determine whether the advertiser has made a bona fide, good-faith effort to comply with NAD’s recommendations.

Here, NAD determined that the only change that BodyArmor made to its advertising was to change the bottle depicted behind the BodyArmor SuperDrink bottle. NAD reviewed the new advertisement and concluded that it raises the same concerns as the advertisement reviewed by NAD in the underlying proceeding. The advertisement continues to claim, “Ditch Artificial Sports Drinks,” without limiting the claim to a specific competing sports drink. The advertiser argued that it modified its advertising so that the photo depicts a G2 beverage, which contains artificial colors, artificial sweeteners, and flavors.

The advertiser declined to make additional modifications as NAD requested. As a result, NAD said it is referring this matter to the appropriate government agency for possible law enforcement action.